In international law, genocide has nothing explicitly to do with the enormity of criminal acts but, rather, of criminal intent.
newyorker – March 13, 2022
“We have to call this what it is,” Volodymyr Zelensky said, late last month, a few days after Vladimir Putin had ordered the invasion and conquest of Ukraine. “Russia’s criminal actions against Ukraine show signs of genocide.” President Zelensky, who lost family members during the Holocaust, and who also happens to have a law degree, sounded suitably cautious about invoking genocide, and he called for the International Criminal Court in The Hague to send war-crimes investigators as a first step. But such investigations take years, and rarely result in convictions. (Since the I.C.C. was established in 1998, it has indicted only Africans; and Russia, like the United States, refuses its jurisdiction.) The only court that Zelensky can make his case in for now is the court of global public opinion, where his instincts, drawing on deep wells of courage and conviction, have been unerring. And by the end of the invasion’s second week—with Putin’s indiscriminate bombardment of civilian targets intensifying, and the death toll mounting rapidly; with more than two and a half million Ukrainians having fled the country, and millions more under relentless attack in besieged cities and towns; and with no end in sight—Zelensky no longer deferred to outside experts to describe what Ukrainians face in the most absolute terms. “I will appeal directly to the nations of the world if the leaders of the world do not make every effort to stop this war,” he said in a video message on Tuesday. He paused, and looking directly into the camera, added, “This genocide.”
Genocide, the word and the idea, is colloquially understood to describe an effort to exterminate members of a definable identity group through targeted killings. Because the best-known cases involve staggering death tolls—the extirpation of Native Americans and Indigenous peoples in the United States and Canada, of Armenians under the Ottomans, of European Jews in the Holocaust, of Rwandan Tutsis at the hands of Hutu Power in 1994—genocide is often assumed to mean mass slaughter, and to have drastic demographic consequences. But, in international law, genocide has nothing explicitly to do with the enormity of criminal acts. Rather, according to the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, it is defined by the enormity of criminal intent:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
By this standard, Putin’s war of obliteration comes readily into focus as genocidal, if not—to date, anyway—as comprehensive genocide. His apparent objective is to extinguish Ukraine as an independent nation, and to subsume it and its surviving population into Russia, where he claims it naturally belongs. As he prepared to attack, massing his forces on Ukraine’s borders, and pretending to engage in diplomatic brinkmanship, he seemed to imagine that the threat of overwhelming force might inspire Ukraine’s leaders to capitulate and surrender preëmptively to his diktat. In early February, after President Emmanuel Macron, of France, flew to Moscow to try to reason with him, they held a joint press conference in which Putin said, as if addressing Ukraine directly, “Like it or not, take it, my beauty.” The line was immediately recognized as a reference to a luridly menacing song about necrophiliac rape by the punk band Red Mold. The Kremlin and its press organs airbrushed the taunt out of the official transcripts. But Putin had made himself clear: he viewed Ukraine as a corpse, and would have his way with it.
In announcing the start of the war, Putin spoke dismissively of Ukraine as a historical fiction, denying its sovereign existence, and portrayed his invasion, absurdly, as a sort of humanitarian mission to “de-Nazify” the place, to protect its people from humiliation and genocide at the hands of their own popularly elected leaders, and to bring those leaders to trial. Putin’s world-upside-down framing treated questions of genocide and war crimes, as well as of democracy and accountability, as make-believe, and therefore ridiculous; and it gave off a strong whiff of the propaganda tactic known as “accusation in a mirror,” in which a speaker accuses his prospective victims of plotting to do to him what he is plotting to do them. As Jen Psaki, the White House press secretary, recently tweeted, “Russia has a track record of accusing the West of the very violations that Russia itself is perpetrating.” Zelensky put it more succinctly: “If you want to know what Russia is planning, look at what Russia is accusing others of planning.”
Putin evidently anticipated that his military juggernaut would meet little resistance, swiftly take Kyiv, and replace Zelensky’s government with an obliging puppet regime. On the third day of the war, even as his forces began to show their weakness, and Ukraine’s began to show their strength, an essay prematurely hailing Putin’s victory in Kyiv, and the dawn of a new world order, appeared on a Kremlin-controlled news platform. It was promptly taken down, but not before being preserved, and, while it cannot be regarded as direct evidence of Putin’s intent, its rhetoric, which reads in parts as if it were repurposed from the archives of the Third Reich, suggests the attitude among his propagandists:
Vladimir Putin has assumed, without a drop of exaggeration, a historic responsibility by deciding not to leave the solution of the Ukranian question to future generations. After all, the need to solve it would always remain the main problem for Russia. . . . Now this problem is gone—Ukraine has returned to Russia. . . . Russia has not only challenged the West, it has shown that the era of Western global domination can be considered completely and finally over.
Meanwhile, in reality, the prospect of Russian glory looks as diminished as the exchange rate of the ruble. That increases the risk of genocidal atrocities. Putin has no apparent exit strategy; and the worse the war has gone for him, the worse he has made it for Ukraine, raining hellfire on its civilian infrastructure, in what appears to be a determination to reduce it, as his forces previously did in parts of Chechnya and Syria, to lifeless rubble. By his own account, Putin’s fight is, above all, against humiliation, and that is a fight he’s losing badly. The war is only in its third week, and he has repeatedly signalled that he is prepared to use his nuclear arsenal, a threat so grave from a man so given to the use of annihilating force that it would be a folly to assume that he’s bluffing.
Zelensky has spent his days under attack convincingly presenting himself and Ukraine to the rest of the world as standing the ground for the collective interests and future of sovereign self-determination against despotism. He has been received with an immediate and extraordinary unanimity of solidarity and commitment: arms, intelligence-sharing, aid, and crushing economic sanctions against Russia. But that has not been enough to spare the Ukrainians, and Zelensky has now taken to using his Kyiv bunker as a bully pulpit to try and shame the world into joining his fight by imposing a no-fly zone over Ukraine. Russia, he says, is alone to blame for the war and its horrors, but he insists that the rest of the world—and here, he singles out the nato powers—shares responsibility.
“If the world stands aloof, it will lose itself. Forever,” Zelensky said, on Tuesday. “Because there are unconditional values. The same for everyone. First of all, this is life. The right to life for everyone.” Then, on Wednesday, after Russia bombed a maternity hospital in Mariupol, he asked, “How much longer will the world be an accomplice ignoring terror? Close the sky right now!” Last week, the mayor of Kharkiv and deputy mayor of Mariupol also described Putin’s campaign as genocide, and Zelensky said that the hospital attack was “the final proof—proof that genocide of Ukrainians is taking place.” He called out Europeans collectively, and said: “You saw. You know.”
It is true that we are all aware of what’s happening: the systematic assault on civilians, on hospitals, on refugee-evacuation routes, on holy places and libraries and Holocaust memorials, and the shrugs and denial from the Kremlin, whose only public acknowledgment of the horror has been to make it a crime punishable by fifteen years in prison to speak of what’s happening as “war” or “invasion.” Many of the nato countries that Zelensky is seeking to draw into the war have ignored genocides and other mass atrocities in the past, and a few had a hand in them. But none of the countries that Zelensky is appealing to now fails to recognize the enormity of either Putin’s actions or his intent, or sees any advantage in aiding or abetting them. Rather, it is Zelensky, in this instance, who is not acknowledging the larger reality: that the world has never before been confronted by a genocidal war waged by a man brandishing nuclear weapons.
On a visit to Poland on Thursday, Vice-President Kamala Harris called for an investigation of “atrocities” by Russian forces, but stopped short of calling them either war crimes or genocide. The Polish President, Andrzej Duda, speaking beside her, did not hesitate. He said that Russia’s invasion is “bearing the features of a genocide—it aims at eliminating and destroying a nation.” Neither leader responded directly to Zelensky’s plea for a no-fly zone, and, on Friday, President Biden effectively rejected the idea, saying, “We will not fight the third World War in Ukraine.” There is, after all, more than one way for the world, as Zelensky put it, to lose itself forever.